KaylaLou Hadash

By Edwin Chereminsky (from the Oklahoma Law Review, Spring 2001)

“The emperor really has no clothes. Justices inescapably must – and should – make value choices in interpreting the Constitution.”

I read this during the first week of my spring semester of law school. Almost right away, I realized that Constitutional Law as a course goes far beyond discussing free speech and women’s rights. It requires a look into the development of our nation and the underbelly of political and legal decisions.

Formalism is the idea that law follows a natural order, allowing judges to apply the law without their own biases or beliefs influencing their decisions. What we now know (and probably always have) is that the law is full of bias. In his paper, Chemerinsky argues that the “allure of formalism dominates constitutional law.” Constitutional law, he points out, is a system of “value choices.” The issue is that judges hide this fact. Chereminsky wants the value choices to be “transparent and explicit.” Formalism is intended to act as a lens that the legal system views all cases through. But the law is rarely straightforward.

Generally, the Constitution acts as a guide to enforcing laws. It is the duty of the Supreme Court to determine if a law passed by Congress violates the Constitution. In a perfect world, there would be an Article that encompasses whatever law Congress may pass. In reality, the Constitution’s broad language leaves it open to interpretation. Landmark cases have been criticized for resting on value-based opinions rather than neutral principles. What practices to enact that would uphold these principles is not clear from the language of the Constitution. This is where both formalism and originalism struggle to make clear decisions.

Originalists, who are largely conservative, argue that value-based decisions stray from the Constitution because the original framers chose not to include those values in the document. Non-originalists view the Constitution as a living document that is intentionally written to be open to interpretation, based on the prevalent issues at the time. The objective of formalism, according to Chereminsky, is to establish “predetermined principles of constitutional law from which Justices can reason… with results that are external to [their] own values.” 

The framers of the Constitution were narrow-minded in that they had just fought a war against tyranny. The focus of their writing was to prevent an ultra-controlling central government. They established a federal government with a system of checks and balances to limit one branch from having too much power. Most everything else was relegated to the states to decide. The issues facing society today are ones the original framers never could have imagined. Originalists hang on to their idea of interpretation because of their desire for formalism. By declaring interpretation is to be based on express language only, they theoretically have a consistent basis for making judicial decisions. Of course, implementing this idea seamlessly is easier said than done.

“Original meaning” is a different sect of the originalism group. The Constitution, according to someone like Justice Scalia, should be interpreted based on the original meaning of the text, not the original intent of the framers. The application of the Constitution is limited to only those actions that were practiced at the time of the writing, according to the original meaning camp. Chereminsky is opposed to this basis for interpretation: “There are many alternative explanations for why a type of law was not used at a given moment.” History seems to act as a mere justification for reaching a certain conclusion, not the basis of a conclusion, especially when there is no original meaning in most constitutional cases. 

Surely there is a way to find a balance between the two schools of thought. The fundamental goals of the Constitution – avoiding tyranny and protecting personal freedom – are still the goals of our nation as a whole. What counts as personal freedom has changed over the years, and that’s where Constitutional interpretation comes into play.